Trends in Occupiers’ Liability Law

The Advocate Files: Personal Injury | Trends in Occupiers’ Liability Law

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Trends in Occupiers’ Liability Law

Comment by: Paul Cahill – Toronto Personal Injury Lawyer at Will Davidson LLP.

Occupiers’ liability claims offer a popular legal route for people injured on improperly maintained property, says Toronto personal injury lawyer Paul Cahill.

“There are a significant number of claims under Ontario’s Occupiers’ Liability Act and there will continue to be many more,” he tells Top Lawyers.

Cahill, a partner with Will Davidson LLP, says four decisions delivered by Ontario courts over the last 12 months offer clues about where the law is heading in the area.

“The general sense is that occupiers have a positive duty to take reasonable care to make sure people aren’t injured on their property,” he says. “But success will always turn on the specific facts and context of the case.”

Coffee shop burned by liability finding

In one decision by the Ontario Court of Appeal (OCA), a panel of the province’s top court upheld a lower-court ruling that found a major international coffee chain responsible for part of the icy sidewalk at the entrance to its patio, where a woman fell and broke her ankle in a 2007 accident.

Cahill says the decision to sue the coffee shop — rather than the municipality that owned the sidewalk — was an interesting one, likely driven by the fact that plaintiffs must meet a higher standard when suing cities, by proving that the upkeep of the property was “grossly negligent.”

The OCA concurred with the trial judge who found that the coffee shop “assumed sufficient control over the sidewalk” to come under the definition of “occupier” in the Act, due to its salting and sanding of the sidewalk, as well as the configuration of its patio and fence.

“The message there was that businesses can be held responsible, even though the injury occurred on property that doesn’t physically belong to them,” Cahill says.

Incompetent tree feller’s claim lives on

In a decision that could strike fear into the hearts of property owners across the province, a Superior Court judge refused to dismiss a claim by a first-time woodcutter who suffered serious injuries when one of the trees he was cutting down landed on him.

The defendant, who owned a Christmas tree growing business, had taken a staff member’s recommendation to contact a wood-chipping company after mentioning he needed some old pines cut down.

Following the accident, the injured worker sued, claiming the property owner hired them even though he “knew or ought to have known that they were not qualified to carry out” the job. The judge hearing the case refused to issue a summary judgment and sent the matter to trial.

“The court is saying there’s a genuine issue to be decided, about whether or not there was an obligation on the part of the occupier to ensure the contractors were sufficiently skilled to do the job,” Cahill says.

“It makes you think about hiring a roofer, and the possibility they could fall off while working and sue you. It doesn’t seem quite right, but depending on the circumstances, that could be a viable claim.”

Judge reins in broad waiver

In another summary judgment decision, a Superior Court judge ruled in favour of a plaintiff injured on college property on the first day of classes.

Before starting his police foundation course, the student had signed a waiver releasing the college “from any and all claims of liability or demands for compensation as a result of injuries I may suffer or damages or losses I may incur as a result of my participation in any of the activities offered.”

During a running race, he struck his head on a basketball hoop overhanging the running track. When he sued, the college moved for summary dismissal on the strength of the waiver. But the judge sided with the plaintiff, concluding it did not apply in the circumstances.

“Waivers are often an issue in these cases,” Cahill explains. “It’s not surprising in this case that the court allowed the claim to continue because the unusual nature of the hazard was not one that could have been contemplated as part of the waiver.”

Town to blame for cyclist’s crash

In a 2017 case, a woman successfully sued the municipality responsible for a recreational trail when she suffered life-changing injuries following a bike accident crash caused when her bicycle tires becoming lodged in an unmarked sleeve for bollards, which are usually used to block access to motorcycles or snowmobiles.

Cahill says the case was notable because less is expected of municipalities when it comes to recreational trails. Plaintiffs in those cases must prove the city acted with “reckless disregard” for users in its failure of maintenance.

“The standard is different for a reason,” he says. “As a society, we recognize the value of these trails for outdoor activities, but we also can’t expect them to be kept in pristine condition for hundreds of kilometres.

“If someone crashes as a result of rocks or bumps in the road, it’s not normally going to be enough to attract liability. But in this case, the fact that the town allowed the bollard sleeve to remain unpainted, it rose to the level of reckless disregard,” Cahill adds.